Rylan Clark-Neal announces he and his husband of six years are to divorce

Rylan Clark-Neal to divorce

Rylan Clark-Neal and husband Dan are to divorce

The hugely popular television presenter Rylan Clark-Neal has announced he and his husband, Dan, are to divorce. In a statement released on 28 June, Rylan said: “I have made a number of mistakes which I deeply regret and have inevitably led to the breakdown of our marriage. I have taken time away from work as I am not in a good place at the moment and am seeking help.”

Our Managing Partner and award-winning family law expert Amanda McAlister explains how divorce in a same sex relationship will be enacted.

It is reported that Rylan’s well-publicised desire to have children, and Dan’s longing for a TV career, may well be the reason for the split, with insiders saying: “they just couldn’t resolve their differences”.

Whether this is true or not, one partner wanting children and the other wanting to focus on their career is certainly not an uncommon reason for a couple deciding their desire to pursue different life choices means they no longer wish to be together, and therefore filing for divorce.

Irretrievable breakdown

In the courts of England and Wales there is only one ground for divorce and that is the “irretrievable breakdown of the marriage” as set out in the Matrimonial Causes Act 1973.  What this means is that one or both parties to the marriage are not willing, or do not want, to continue living and being in a relationship with one another, having determined that the marriage is over for good.

Whilst there is one ground for divorce, there are five legally accepted facts (or reasons) for a divorce to take place.  Although a no-fault basis divorce is in the pipeline and legislation is planned for April 2022, unfortunately until then, we are still working on a fault-based system.

What are the Five Facts?

In the Petition, the Petitioner (the person who issues the divorce Petition) must prove that the marriage has broken down irretrievably by evidencing one of five, specific, statutory facts:

  • The Respondent’s adultery
  • The Respondent’s unreasonable behaviour
  • Desertion – the Respondent must have deserted the Petitioner for at least two years (in practice, this is rare, and difficult to prove)
  • two years’ separation with agreement by both that there should be a divorce
  • five years’ separation (the consent of the Respondent is not needed)

The most common facts relied upon are adultery, or unreasonable behaviour.

One crucial difference

There is, however, one crucial difference for same sex divorces as opposed to heterosexual divorces, and that is that adultery cannot be used in a same sex divorce. This is due to the current law defining adultery as when “your husband or wife has had sexual intercourse with someone else of the opposite sex”.

On that basis – that adultery can only be grounds for divorce where there has been sexual intercourse between two people of the opposite sex – sexual intimacy between two people of the same sex is not “adultery” for the purposes of obtaining a divorce, if one of those people is in a same sex marriage.

However, in same sex marriages, although adultery is not a ground for divorce, the infidelity could be used as an example of unreasonable behaviour.  Apart from the difference in the terms of the ground of a divorce, the application process is the same for same-sex and opposite-sex couples.

If you are affected by any of the issues raised here, please get in touch with one of our expert family lawyers today. We are here to help you.

Does having an affair affect your divorce settlement?

Matt Hancock affair

To what extent is an affair taken into account when dividing assets on divorce?

Over the past few days Matt Hancock’s resignation as health secretary over an affair with his aide Gina Coladangelo has played out in the full glare of the media. It is understood that Mr Hancock, a father of three, has left his wife of 15 years, Martha; his relationship with Ms Coladangelo is described as “serious”.

Partner and family law expert Caroline Bilous looks at the implications of Mr Hancock’s conduct, explaining to what extent an affair is taken into account when resolving the division of assets on divorce. 

The law, specifically the Matrimonial Causes Act 1973 section 25(2)(g), says that a person’s conduct is taken into account only where

“…the conduct is such that it would in the opinion of the court be inequitable to disregard it.”

The law contained within this key piece of legislation was supplemented by the House of Lords decision in Miller v Miller and McFarlane v McFarlane in 2006 [2006] 1 FLR 1186 which provides that only in truly exceptional cases where conduct is “gross and obvious” will it be taken into account.

When is conduct taken into account? 

The law in England today does not enable a court to punish a person for their behaviour and instead the process is designed to achieve an outcome that has regard to all the circumstances of the case, one that mist give first consideration to the welfare of any child under the age of 18 and only in exceptional circumstances, where the assets are in excess of need will a parties conduct have an impact upon the outcome. It is important to note that need will be measured by assessing available financial resources and assessing the standard of living during the relationship and generally the longer the relationship’s duration the more important the standard of living will be.

In 1972,Wachtel v Wachtel [1973] EWCA Civ 10 Lord Denning made it clear that:

The court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.  To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”

This is an extremely poignant extract and one that broadly sums up the courts approach to personal conduct today in that the role of the court is not to redress marital unhappiness and that such arguments have no place before the financial remedy courts.

In clear contrast however is where conduct takes the form of dissipation of assets by one party to the marriage causing a depletion in the assets available for division. The other party in this scenario would then seek to add back those assets that have been taken to redress such conduct.

For the court to add back assets that have been spent, the court has to be satisfied that there has been “wanton dissipation of assets”.  In Martin v Martin [1976] Fam 335, Cairns LJ said:

“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.”

Bennet J in Norris v Norris [2003] 1 FLR 1142 said:

“…of course a spouse can spend his or her money as he or she chooses but it is only fair to add back into that spouse’s assets the amount by which he or she recklessly depletes the assets and thus potentially disadvantages the other spouse…”

Non-disclosure

There can also be issues of non-disclosure or a lack of financial transparency which could also fall within section 25 (2)(g) conduct.

In NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), Mostyn J stated that

“…the Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant”.

Therefore, while each case is treated entirely on its own merits and circumstances, as the law stands, an affair itself is highly unlikely to be taken into account when dividing assets on divorce. However to understand more about your rights our specialist team of family solicitors are here to help guide you through with a breadth of experience through these complex and difficult circumstances.

 

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Civil partnerships – the dissolution process

civil partnership dissolution

Civil Partnerships – the dissolution process

What is a Civil Partnership? Initially introduced by the Civil Partnership Act 2004, civil partnerships were devised to provide a relationship status for same sex couples akin to, but different, to a marriage, which was not available to same sex couples until 2014.

(Civil Partnerships have since been made available to heterosexual couples as of 31st December 2019, pursuant to the Supreme Court ruling in favour of Rebecca Steinfeld and Charles Keidan.)

Associate Aaron Williams explains the civil partnership dissolution process.

A civil partnership is formed once both individuals, both of whom are at least are 16 years of age, have signed the civil partnership document in the presence of a registrar and two witnesses. Unlike a marriage at civil ceremonies readings, songs or music cannot have any religious connotations, e.g. readings from the bible or hymns etc.

The differences between a civil partnership and marriage are nominal, but small differences do exist:

  • Civil partners cannot call themselves ‘married’ for legal purposes
  • A marriage is ended with divorce by obtaining a decree absolute, while a civil partnership is ended with dissolution by obtaining a dissolution order
  • Adultery is not a valid reason to dissolve a civil partnership, but it can be used to divorce

Despite the small differences, legally speaking a civil partnership broadly confers the same rights to civil partners, when concerning the laws that govern wills, administration of estates and tax exemptions.

Dissolution of Civil Partnership

Should you come to the difficult decision that the relationship is over, and you legally wish to end your civil partnership, an application will need to be made to court for a dissolution order. To apply for a dissolution order, the civil partnership must have been in place for a minimum period of one year.

Much like the divorce process, until the implementation of the no-fault divorce process in April 2022, the court work on a fault-based system. To start the dissolution process, you will need to prove to the court that the civil partnership has ‘irretrievably broken down’ and that there is no prospect of reconciliation; to prove this one of four facts need to be established, these facts are:

  • Unreasonable behaviour – Your civil partner has behaved in such a way that you cannot reasonably be expected to live with them (whilst adultery in of itself cannot be cited as a fact for the parties’ separation in of itself as in divorce proceedings, it can be cited as an example of unreasonable behaviour)
  • two years’ separation and consent – You and your civil partner have ‘lived apart’ for a continuous period of at least two years prior to the presentation of the dissolution petition and your partner agrees to the dissolution being granted
  • two years’ desertion – Your civil partner has deserted you for a continuous period of at least two years immediately proceedings the dissolution petition, and
  • five years’ separation – You and your civil partner have lived apart for a continuous period of at least five years prior to the presentation of the dissolution petition (civil partner’s consent not required).

Dissolution Process – the timeline

  • Preparation of Dissolution papers – You as the civil partner who lodges the petition (known as the petitioner), will be required to particularise within the dissolution petition how the Civil Partnership has ‘irretrievably broken down’, using one of the facts detailed above. The paper will then need to be forwarded to Court with the requisite Court fee.

If completed correctly the Court will ‘issue’ the petition and send a copy to your civil partner who will be referred to as Respondent going forward.

  • Acknowledgement of Service – Your civil partner will receive a copy of the Dissolution Petition, together with a copy of a form known as an Acknowledgement of Service. The document needs to be completed within seven days of receipt, wherein they confirm receipt of the dissolution papers and confirm whether they seek to contest the dissolution petition or not.

Should your civil partner seek to contest the dissolution, they will have a further 21 days to file an ‘Answer’ to the Court, detailing why they do not agree to the dissolution.

  • Confirming the Petition – The next stage in the process is for the petitioner to sign a statement of truth, confirming that the circumstances remain the same and that they do not wish to alter the content of their petition. This is then filed with the Court with a request that the Conditional Order is pronounced.
  • Conditional Order – The second stage in the dissolution process (Decree Nisi in divorce), if the dissolution petition is uncontested by your civil partner, the Court will consider the content of the papers filed by parties and will confirm whether it is satisfied the reasons cited within the dissolution petition are sufficient for the dissolution to be granted. If approved, any financial order can now be implemented. It does not mean that the civil partnership has been dissolved at this point.
  • Final Order – six weeks and one day after the date of the Conditional Order the petitioner can apply for the ‘final order’ which is the document that will ultimately bring the civil partnership to an end. Should the petitioner not apply, within three months after this time period has elapsed (total four and a half months) then the Respondent can apply to court for the Final Order to be made.

The process in total should take approximately four to six months to complete, however, this is dependent on a multitude of elements, including, whether the dissolution is agreed, how promptly parties complete and file documents and the Court’s availability.

If there are any disagreements between parties regarding any financial settlement, then it can result in further delays until any ultimate settlement is agreed.

Dissolution – Finances

As with married couples, upon separation any dispute between civil partners as to the title or possession of property either partner may apply to Court to reach a settlement. The Court’s principle aim is to reach a fair settlement upon consideration of each parties’ needs and resources. When settling assets, the Court will look to equally split the assets, unless convinced by either party that a departure from equality in their favour is justified.

The Court can make several orders to settle the finances which are principally as follows:

  • A sale of a property, a transfer to one person, or put it into a trust
  • A lump sum (whole or in instalments) or a series of lump sums, eg to pay off a mortgage
  • Typically, in scenarios where there is income inequality between the parties, it can order one party to pay maintenance to the other either for the rest of their joint lives, until the recipient remarries, or for a fixed period.
  • It can order money for school fees etc but not usually for general child maintenance
  • It can order that a pension be shared or attached. Sharing is where funds are transferred or split between the parties; attachment is like maintenance direct from a pension but can also be a lump sum.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

The Role of Cafcass

role of cafcass

The role of Cafcass

When your child is subject to family proceedings, there may be a barrage of different voices and perspectives: from parents, their legal representatives, and even the wider family. Unfortunately – and unintentionally – it is all too easy for the bigger picture to become blurred, and this is where Cafcass (the Children and Family Court Advisory and Support Service) will step in. But who is Cafcass, what is its role, and why is it involved? Family law paralegal Georgia Smith explains.

Who is Cafcass?

The Children and Family Court Advisory and Support Service, or Cafcass, is an independent organisation whose primary role is to represent the interests of children. Cafcass can become involved in private law child arrangements proceedings, where separated parents are unable to agree on arrangements, or in public law applications brought by social services, where there are concerns about the welfare of a child.

What is the role of Cafcass in Private Law Proceedings?

Upon filing an application with the Court, the case will be referred to Cafcass, which will initially write to both parents to explain its role within proceedings and inform them of their allocated case worker.

Cafcass will then carry out safeguarding checks. This will include contacting the police and the local authority, to ascertain if any of the parents are known to them, and if there are any known welfare or safety risks to the child(ren).

Cafcass will then schedule a telephone interview with each parent. Although this may seem daunting, the case worker will speak to each parent individually, with a view to discovering any concerns that  they may have about the welfare and safety of their child(ren). It is imperative that parents are open, honest and remain child-focused. After all, Cafcass are working towards a fair resolution, with the child(ren)’s best interests at the forefront of their consideration.

Following this, a safeguarding letter will be prepared and sent to the Court. This report will detail the outcome of the safeguarding checks and any issues raised by the parents during the telephone interviews. The safeguarding letter will normally be made available to the parents, their solicitors and the Court, at least three days before the first hearing.

The role of the Cafcass worker is to work with both parents to reach a mutual agreement that is in their child(ren)’s best interests. If at the first court hearing it is apparent that  the parents are unable to reach an agreement and there remains welfare concerns raised by one of the parents, then the Court may direct that Cafcass prepare a Section 7 report.

This report will primarily focus on the welfare of  the child(ren) and is prepared for the Court in accordance with the welfare checklist contained within Section 1 of the Children Act 1989. A range of factors are taken into consideration, including:

* the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding)

* the child’s physical, emotional and educational needs

* the likely effect on the child of any change in their circumstances

* the child’s age, sex, background and any characteristics which the court considers relevant

* any harm which the child has suffered or is at risk of suffering

* how capable each of the parents, and any other person who the court considers the question to be relevant, is of meeting the child’s needs

* the range of powers available to the court in the proceedings.

Dependant on the age and maturity of the child(ren), Cafcass may speak with them to ascertain their wishes and feelings. Although Cafcass is often referred to as the ‘voice of the child’, they may consider that the child’s view is not in their best interests, so it is important for parents to understand that a child’s opinion may not always be decisive and attempts should not be made to influence their wishes.

Upon receipt of the Section 7 report, each parent should expect their solicitor to analyse the report in detail. Cafcass will make recommendations to the Court and usually the Judge will not depart from these recommendations without persuasive evidence to the contrary.

That being said, the report is not always considered determinative and of course, the recommendations can be challenged. Experienced children solicitors understand that family relations are complex and often assumptions can be made on limited information. It is therefore essential that parents work with their solicitor, and Cafcass, to reduce the issues in dispute and focus on the best interests of  their child(ren).

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

Home schooling and shared care: how to manage this successfully

home schooling and shared care

Shared care and home schooling

Due to Covid-19, over the past 15 months parenting has for been particularly challenging. And for many separated parents, changes such as lockdowns and schools closures have been thrust upon them, without the chance to discuss shared care arrangements with the other parent.

It might be that you, as parents, have been home schooling your children for many years anyway, but for many this was new, and largely unknown, territory. However now normal life beckons, there’s no disputing the fact that some parents have really taken to home schooling and want to continue. How best to do this, so that all involved are happy with the arrangements, and the children thrive? Associate Melissa Jones explains.

How do I implement the same routine for the children at the other parent’s house?

It is important to remember that despite the urge to set out a clear timetable for the children each day, this might not be practical, depending on the ages and needs of your children and also whether you or the other parent needs to work from home.

When you co-parent you are reliant, to a certain degree, on flexibility and trust in the other parent. Each parent has their own style of parenting and while you may not agree on everything regarding the children, the ability for your children to experience secure and stable upbringings across two homes is possible.

Home schooling: the Parenting Plan

For co-parents, one handy and almost essential tool is a “Parenting Plan”. In essence, it is a written document that records the day to day and practical arrangements of parenting.  Also, if you are looking to make an application to the family court for a Child Arrangements Order (Section 8 Children Act 1989), in the future, the court will expect you to have looked at a parenting plan.

The Children and Family Court Advisory and Support Service  (CAFCASS) which represents children in family court matters in England, describes the benefits of making a Parenting Plan below:

  • it will help everyone involved know what is expected of them
  • it acts as a valuable reference to go back to
  • it sets out practical decisions about the children, such as living arrangements, education and health care.

You can see more detail here.

How can I include home schooling in a Parenting Plan?

There is a section dedicated to “education” in each parenting plan, so, if you are looking to create a plan for the first time or even if you already have a plan, a good talking point would be home schooling and how you can work together to achieve this. You might find that one parent really likes the idea of planning the day around available resources online, where a number of celebrities are producing content designed to fall in line with the national curriculum. On the other hand, it might be that the other parent is really hands-on and wants to use this time to teach the children practical skills such as woodwork, gardening, baking, and more.

How will I know what the other parent is planning?

For many years now family law practitioners have been encouraging the use of a “communication book” with the idea being that one parent records useful information about their time and activities with the children, and the book is then passed to the other parent, on handover.  One way this could be to send electronic updates or set up a designated “email” just for communication about child arrangements. You could even develop your own form of home work diaries and there are plenty of apps out there that could help you stay connected as a family.

In the end, what’s important is communication – there is no question that no matter what the situation, children always benefit when both parents talk to one another and agree the way forward.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

The Bill and Melinda Gates’ divorce

Bill and Melinda Gates divorce

The Bill and Melinda Gates’ divorce

Our managing partner, Amanda McAlister, offers her expert opinion on the news that Bill and Melinda Gates are to divorce, and looks at some of the issues involved.

I woke this morning to the news that Bill and Melinda Gates were to get divorced. Minutes later my phone starting ringing, as I took one request after another from journalists wanting to cover the story and get my opinion on what a later-in-life divorce involves. It’s no exaggeration to say that almost every media outlet around the world is keen to look closer into why this multi-billionaire couple would want to part after 27 years of a seemingly very successful marriage.

Gates, 65, the fourth richest man in the world, founded Microsoft in 1975 and met his future wife Melinda in 1987, the year he became the world’s youngest billionaire. In 2000 they established the Bill and Melinda Gates Foundation. 

They have three children – Jennifer, 25, Rory, 21, and Phoebe, 18 – and in the message announcing their divorce, they wrote:

“After a great deal of thought and a lot of work, we have made the decision to end our marriage.

“Over the last 27 years, we have raised three incredible children and built a foundation that works all over the world to enable all people to lead healthy, productive lives. We continue to share a belief in that mission and will continue to work together at the foundation, but we no longer believe we can grow together as a couple in this next phase of our lives. We ask for space and privacy for our family as we begin to navigate this new life.”

Prenups and separation agreements

Court documents reveal that the couple do not have a prenuptial agreement. We’re told Melinda, 56, filed for divorce at a court in Washington state, saying “this marriage is irretrievably broken” when asked to explain the split, also revealing there was no prenuptial agreement when they wed on a Hawaiian golf course in 1994.

However, famously Bill used a pro and con list on a whiteboard to decide to whether or not to ask Melinda to marry him, so I suspect the couple may well have approached the ending of their marriage in the same carefully thought-out manner.

Indeed, the document, filed Monday in King County Superior Court in Seattle, notes that the pair has a “separation agreement.” A separation agreement is usually signed at the end of a marriage and lays out the terms of the split – it will, apparently, dictate how the couple will divide up their assets, which include the family home, a $125million compound overlooking Lake Washington on the outskirts of Seattle, a mansion in San Diego, a Santa Fe ranch, a countryside retreat in Wellington, Florida, a lakeside lodge in Wyoming which used to be home to Buffalo Bill and a garage full of Porsches, Ferraris and Lamborghinis. In fact, the Gates fortune is estimated at well over $100 billion, so I’m not surprised Melinda has not requested spousal support, according to the filing.

Divorcing after a long marriage

It’s interesting to note that there has been a significant increase in the number of couples filing for divorce who have been married for more than 20 years. I think it’s significant that the Gates’ youngest child recently turned 18: it’s reasonable to assume the couple wanted to wait for all their children to reach adulthood before they announced their formal separation, and I would also say it takes guts to do this after such a long marriage – perhaps even more so when your relationship, and your life, is so public.

How would this divorce be treated here?

Technically, separation agreements aren’t legally enforceable under UK law. But if both parties have been open and honest about their finances and taken independent legal advice about the agreement, then it’s entirely likely the court will decide you should stick to it.

However, under our jurisdiction there is also what’s known as the “millionaire defence”. This is a term created following the case of Thyssen-Bornemisza v Thyssen-Bornemisza (No) [1985] FLR 1069 where a wealthy party put forward a defence to providing full disclosure, on the basis that he had sufficient wealth to pay a lump sum or maintenance to the financially dependent party. In other words, why should the court go to the trouble, time and expense of investigating the millionaire’s means, when it is clear that he/she can meet whatever reasonable order the court is likely to make?

This defence causes some controversy as the court has an obligation to consider the parties’ financial resources properly. Furthermore, in order for the court to conclude that an order is fair and reasonable, it must consider the full and frank disclosure of all material facts, documents and other material. Nevertheless, it remains a viable option for the very wealthy, who are hopeful of keeping the precise details of their finances entirely private.

Keep it respectful

When Amazon founder Jeff Bezos and his wife MacKenzie announced their split after 25 years of marriage, they emphasised that the decision was mutual. But even when a couple part on amicable terms, the financial untangling is likely to be complex, simply because the sums involved, and the assets held, are so huge. However, neither party has said anything derogatory in public about the other, and both have moved on: MacKenzie married again two years after the divorce, her ex-husband Jeff has been with his girlfriend for two years.

I hope Bill and Melinda Gates both go forward in positivity and enjoy a fulfilling and happy future, and in particular I applaud their decision to continue to work together on their charitable foundation – showing respect for one’s ex is vital if they are to be a couple who, instead of being known for how wrong they got their divorce, are known for getting it right.

 

If you would like to consult one of our expert family lawyers about any aspect of divorce or separation, please do get in touch today. We are here to help you. 

More love and marriage…

Sarah Jessica Parker

More love and marriage…

We had such a great response to our recent Love and Marriage blog that we thought we’d add some more quotes to our special selection of celebrity words of wisdom about love, relationships and marriage.

Because there’s no doubt that on this topic everyone has their own opinion: some have their own personal deal-breakers, some know for certain the one thing that will melt their heart – and a lot of people will tell you it takes hard work and commitment.

See if you agree!

Katharine-Hepburn

“I often wonder whether men and women really suit each other. Perhaps they should live next door and just visit now and then.” Katharine Hepburn

 

Albert Einstein

“Men marry women with the hope they will never change. Women marry men with the hope they will change. Invariably, they are both disappointed.” Albert Einstein

 

Justin Timberlake and Jessica Biel

“We have a couple of rules in our relationship. The first rule is that I make her feel like she’s getting everything. The second rule is that I actually do let her have her way in everything. And, so far, it’s working.” Justin Timberlake

 

Anne Bancroft

“The best way to get most husbands to do something is to suggest that perhaps they’re too old to do it.” Anne Bancroft

 

Prince Philip and Queen Elizabeth,

“I think the main lesson we have learnt is that tolerance is the one essential ingredient in any happy marriage.” Prince Philip, Duke of Edinburgh

 

Rita Rudner

“I think men who have a pierced ear are better prepared for marriage. They’ve experienced pain, and bought jewellery.” Rita Rudner

 

Sarah Jessica Parker

 

“It seems so silly, but I think you’re very lucky if you like the person. I still just really like him.” Sarah Jessica Parker

Robert De Niro’s paying…

De Niro

Robert De Niro’s paying…

Robert De Niro and Grace Hightower are engaged in a tortuous divorce battle; recently the couple clashed in a virtual hearing over Ms Hightower’s spending habits. Partner Liz Cowell takes a closer look at the issues involved in the split.

The facts

Robert De Niro was married to his wife Grace Hightower in 1997.  Their relationship would be classified as a long marriage in our jurisdiction; this is despite the fact that they separated in 1999 and started divorce proceedings, because the divorce never went through, and they renewed their vows in 2004.

When the couple renewed those vows, they also entered into some sort of nuptial agreement.

The agreement would provide Ms Hightower with a $4.7m house and a further lump sum equivalent to approximately half a million dollars, plus an income of $1m per annum, providing that De Niro was earning at least $15m a year.

Now that the couple have separated again and divorced in 2018, Ms Hightower is seeking 50% of De Niro’s total wealth, which she estimates to be $500m.

Defending his position, De Niro claims that his ex-wife is a spendthrift and he has been forced to continue acting and taking part in films which he describes as “dreadful” to maintain the parties’ lifestyles.  He also claims that he has substantial indebtedness for unpaid taxes which he intends to pay off using the income earned from his next two films.

The matter has reached a preliminary stage in which the judge has pointed out to both parties that their expenses are extraordinary, which is an early indication that Ms Hightower’s demands to maintain her lifestyle spending circa $375,000.00 per month is unlikely to be supported by the court.

What would happen here?

Would Ms Hightower be bound by the nuptial settlement entered into when the parties renewed their vows?

In this jurisdiction there have been a series of decisions by the High Court that where the parties have given full disclosure of their financial position and have had proper legal advice, whilst not binding the court such an agreement will be used as evidence and will influence how the court approaches its duty of fairness.

From the information available in the media, it appears that Ms Hightower is now protesting that she was misled as to the extend of her husband’s wealth at the time of the agreement.  Given her status and financial acumen, such protestations would be easily rebutted if she was given full legal advice at the time, particularly as she had already been living with De Niro for several years and was unlikely at that stage to be ignorant of her husband’s earnings and wealth.

The matter of the extent to which the nuptial settlement should be considered would probably be dealt with at a preliminary hearing.

Division of assets

That said, after a long marriage the starting point for the division of assets is 50/50, taking into account pre-acquired wealth and after the deduction of each parties’ debts, which means that any financial settlement would be derived from the amount De Niro would have after his tax bills were paid.

It seems that De Niro’s legal team are complaining that he is being ordered to provide disclosure – however, in our jurisdiction disclosure is mandatory for all parties going back at least 12 months, and he would be required to provide the same, as would Ms Hightower.  Ms Hightower has been accused of hiding the purchase of expensive jewellery: this would have to be disclosed and valued.

Allegations

Sadly, it would seem that unpleasant allegations are being made about Ms Hightower who is accused of being a spendthrift, one who had started life as a waitress from a poor background.  It is implied that she married De Niro simply for his earning capacity.

Would this be relevant in our jurisdiction?

The answer to allegations about Ms Hightower’s background is that it would be utterly irrelevant, albeit the court would look at Mr De Niro’s pre-acquired wealth as well.

The allegations regarding her spending habits are relevant however; not because she is a spendthrift, but because the court needs to look at the parties’ resources, status quo and what are her reasonable needs.

Our courts would be minded of the fact that Mr De Niro is already 77 years old and cannot be expected to continue working indefinitely.

A challenge for the court brokering a financial settlement between the parties either here, or in the United States, is to try and achieve fairness and that is done here in England by applying a yardstick of equality. It is also mandatory upon the courts in England to achieve a fair, clean break where possible, and this can be done by dividing capital and working out how much income would be available from the capital to meet needs and if there was a shortfall, adding a further capital sum.

The court would be using the facts available to look at the nuptial settlement and maybe capitalise the maintenance payable, but given Mr De Niro’s age it is unlikely he would be expected to continue working for more than two or three years.

If Mr De Niro was before the English courts he would need to be more generous if he wanted settle matters, and he would be encouraged to stop making allegations about his wife, who is the mother of his child and to whom he has been married for more than 20 years. At the same time, Ms Hightower clearly needs to curtail her spending and put forward a reasonable proposal for settlement.

 

If you are are considering separation or divorce and require specialist legal advice, please get in touch today.  We are here to help you.

Variation applications – what do you need to know?

variation order

Variation applications – what do you need to know?

Covid-19 has had an impact on most people’s financial position and for many, the impact has not been positive. When times get tough, people start to audit their finances. Can we afford to keep the subscription to the magazine that usually goes unread, the direct debit to a streaming service that we don’t even remember the password for, or – more significantly- a spousal maintenance standing order? Conversely, we also look at our monthly income and wonder if there is a way we can eke out a little more. Can we up our hours at work, sell some clothes online, or other money-saving measures?

In these times of continuing economic upheaval, it is to be expected that variation applications are on the rise.  Solicitor Heather Lucy explains.

What can the court do?

The court has the power to increase, decrease, suspend, terminate, extend (in certain circumstances), or capitalise the spousal maintenance payments. Capitalising payments simply means that a lump sum is calculated based on the term and quantum of the order, which is then paid and the ongoing obligation ends. This is good for the payee as they have the certainty of having the cash in their bank account and also good for the payer as they do not need to look over their shoulder with regard to a potential application for an upward variation of maintenance if they get a promotion, for example. The issue with capitalisation, however, is usually affordability.

The key thing to remember with spousal maintenance is that it is based on the needs, as agreed or determined by the court, of the parties. It is by showing that those needs, or your ability to meet your own needs, have changed that may give rise to a variation of spousal maintenance.

How do I do it?

The first port of call should be to speak to your ex-partner. Explain the situation to them and see if you can come to an agreement. You can invite them to come to mediation with you to see if the input of a neutral third party assists. If you do not seem to be making progress, you can instruct a solicitor to put the request to them more formally and see if you can come to a resolution outside of the court arena.

If it does not work, you will need to consider making an application to the court. It is crucial to understand the potential cost implications before applying. The usual family law rules, where parties meet their own costs save for exceptional circumstances, are suspended in variation applications. The successful party (be that the party applying for or defending the application) may claim their costs from the unsuccessful party. For this reason, it is sensible to reach an agreement without issuing proceedings wherever possible.

What happens in the court proceedings?

If you have a spousal maintenance order in place, there is a good chance that you have been through court proceedings or negotiations via solicitors. This means that the process of financial disclosure will be familiar to you. The courts need to know about each party’s assets, liabilities, income, and outgoings before they can make a decision. The first step, therefore, is financial disclosure which is usually done by way of Form E1. The court will then be in a position to decide whether it would be fair to vary the original order.

What do the courts consider?

The court’s primary consideration will be the welfare of any children. It has a broad discretion in terms of the orders it can make, as set out above, but they will need to focus on any changes in circumstance since the original order was made. This is important to consider as it will be very difficult to persuade the court to vary the order if nothing material has changed. This means you should be very specific about why you are asking the court to change the current order, for example, are you being paid £100 less a week and need your ex-partner to top up the order by that amount to meet your needs? Are you being paid £100 less a week and therefore need to reduce your spousal maintenance obligation?

The order may not be as straightforward as these two examples, but they are the kind of questions you need to ask yourself.

What’s the bottom line?

If your financial circumstances change, you may be able to vary a spousal maintenance order. Good communication is key and you should start by having a discussion with your ex-partner. This is crucial due to the potential cost implications of bringing an application to the court. Both parties will need to be aware of this and it can encourage negotiation.

It is difficult to provide broad-brush advice on variation as cases will turn on their specific facts. You may wish to take some advice from a solicitor before approaching your ex-partner directly or you might have reached a point where it is clear matters will not be resolved amicably; either way, McAlister Family Law’s team of expert lawyers can advise you.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

How can I enforce a Children Act Order?

how can I enforce a Children Act Order?

How can I enforce a Children Act Order?

“They’re ill.”

“You were late by five minutes.”

“They don’t want to see you.”

“It isn’t on this week, you have your dates wrong.”

Above are just a handful of reasons that a parent might hear as to why a Child Arrangements Order cannot be complied with. But is this right and does this ultimately trump a court order? Associate Melissa Jones explains.

How can you enforce a Children Act Order? If you have been involved in Children Act Proceedings and obtained a final court order, there are consequences if a party breaches an order, as follows:

(a) They may be held in contempt of court and be committed to prison or fined; and/or

(b) The court may make an order requiring them to undertake unpaid work (an enforcement order) and/or an order that they pay financial compensation.

How does this really work in practice?

Essentially, the court makes the order and expects parents to ensure it works on the ground. There may be times though when a child is ill, or there is an emergency, for example , which might mean that the child arrangements cannot go ahead on occasion. However, this should not happen repeatedly and if it does then unless the other parent has “reasonable excuse” for not allowing the contact, then they would appear to be in breach of the order.

What is the enforcement court process?

There  is still an expectation that you take steps to resolve matters before applying to the court. As you may have heard before, the court is a last resort. It is best practice, before an application is made, to address the issue with the other party and inform them of the implications of not doing so.   If the matter is not resolved, then you may have little choice but to apply to the court for enforcement.

What happens when I make my application?

You can make an application to enforce the order if you feel that it has  not been complied with. At the first hearing the court can be asked to consider the facts of the alleged breach and, in some cases, if these breaches are not agreed, list a hearing to determine those facts. The court can also decide, if after listening to the reason(s) for non-compliance, if CAFCASS or Social Services need to get involved.

The court process usually follows the same process as your last case (the one where you obtained your final order), that is:

* First Hearing Dispute Resolution Appointment (FHDRA)- the purpose of the hearing is to try and agree matters as much as possible

* Review hearing- this will be listed if matters cannot be resolved at the first hearing and the non-compliance issue remains live. It might have been that a report was ordered at the FHDRA for CAFCASS or Social Services to complete, for review at this hearing

* Final hearing- where the court will make an order after listening to evidence from the parties

The bottom line in these types of cases is, that there is an order in force, and it should be adhered to. If a parent is not able to comply with an order, they are able to make an application to ‘vary’ the order to ensure that they do not indirectly continue to breach an order.

If the court finds that a party has not complied with the order it can take a number of steps as detailed above, but one of lesser known options, and quite a rarity, is to order a transfer of residence, with the child going to live with the other parent. The latter happened in the following case: Re C (A Child) [2018] EWHC 557 (Fam)

Given the implications of not adhering to an order and the court’s robust approach, it is best to get advice as early as possible.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

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